Guidance For Agencies

Nazi War Crimes Disclosure Act

NARA preliminary analysis of privacy issues

I. The exemption from disclosure on privacy grounds

A. The Nazi War Crimes Disclosure Act amends the Freedom of Information
Act (FOIA) to require disclosure of classified "Nazi war criminal records," with
certain exceptions:

Section 3(b)(2)(A) of the Act allows an agency head to exempt from release
"specific information, that would . . . constitute a clearly unwarranted
invasion of personal privacy." In keeping with the fact that the Nazi
War Crimes Disclosure Act, like the FOIA itself, is a disclosure statute,
not a withholding statute, the exemptions are not mandatory.

The term "clearly unwarranted invasion of personal privacy" is
also used in the Freedom of Information Act Exemption 6, 5 U.S.C. § 552(b)(6).
We can look to FOIA's extensive case law for an interpretation of what
the term means and how to apply it to "specific information" in
Nazi war criminal records.

B. Elements of FOIA Exemption 6 (personal privacy):

Even to be considered for potential withholding, the information must be identifiable
with a specific individual, not a large group of individuals or an organization.

Once that threshold requirement is met, the question is whether the
disclosure of the information "would constitute a clearly unwarranted invasion of
personal privacy." That answer depends upon the outcome of a balancingof
the public's right to disclosure against the individual's right to privacy.

First, is there a privacy interest to be protected? If there is no
identifiable privacy interest to begin with, then no further analysis is needed: the
information is disclosed.

In what circumstances might there be no privacy interest? Although
there are almost always exceptions, the general rules are: no privacy interest in
information in the public domain; no privacy for dead people or for organizations,
companies or corporations; no privacy expectation for federal employees in information
regarding their employment status or duties.

If a privacy interest exists, then you must identify the public interest,
if any, in disclosure and weigh it against the privacy interest. If there is no public
interest in disclosure, or if the privacy interest outweighs the public interest, then the
invasion of privacy would be unwarranted and the information should be withheld.

If the public interest outweighs the privacy interest, then the invasion
of privacy would be warranted and the information should be disclosed.

What constitutes "public interest"? For purposes of
FOIA, the public's interest is in information that sheds light on an agency's
performance of its statutory duties--i.e., it shows "what the government is up
to." To be considered in the balancing test, the information asserted to be in the
public interest must reveal something about the operations and activities of the federal
government.

The Act expressly provides that in applying the other exemptions
from release--those relating to national security concerns [Sec. 3(b)(2)(B)-(J)]--there is
a "presumption that the public interest in the release of Nazi war criminal records
will be served by disclosure and release of the records." Sec. 3(b)(3)(A). Assertion
of the national security exemptions also requires an agency head to make the determination
that release of the exempted information "would be harmful to a specific interest
identified in the exemption." Sec. 3(b)(3)(A).

Although this presumption is not expressly applicable to the privacy
exemption, such a presumption is implicit in the FOIA itself and the privacy
exemption's balancing test requires that the public interest be factored into any
determination to apply the exemption. Moreover, in conducting the balancing test, the
courts have instructed that the "clearly unwarranted" language in the exemption
weights the scales in favor of disclosure.

The Supreme Court has emphasized that a core public interest embodied in
the FOIA itself is "to hold the governors accountable to the governed," to
inform the public of violations of the public trust. The legislative history of the Nazi
War Crimes Disclosure Act and the National Security Advisor's tasking memorandum of
February 22, 1999, make clear that this core purpose is integral to implementation of the
Act. For example, Senator Leahy noted in his statement in support of the Act the need for
"full disclosure by federal agencies about what our government knew, and when, about
Nazi atrocities and the criminals who committed those atrocities."

Finally, it is important to remember that even if a privacy interest in
withholding is found to outweigh a public interest in disclosure, FOIA requires release of
all reasonably segregable non-exempt information in a record.

As processing of records proceeds, NARA will provide agencies with
examples of records that will help in making these privacy determinations.

II. List to be provided by Office of Special Investigations, DOJ -
privacy issues

The Justice Department's Office of Special Investigations (OSI) will
be providing agencies with a list of approximately 60,000 names that can be used to search
for responsive records. The bases for the list will be (1) the names of SS
officers and (2) individuals named by the United Nations War Crimes Commission. Although
both of these lists are open and available to the public, the OSI-compiled list will
likely be supplemented by names of individuals who may not have been publicly associated
with criminal activity but whose names could help lead to records encompassed by the Act.

Accordingly, the OSI-compiled list should be characterized in a way that
avoids having the government unfairly stigmatize persons who have never been charged with
or publicly accused of a crime. One approach would be to designate the list as a "key
word list for conducting searches" or similar title that avoids an implication of
wrongdoing on the part of each and every individual who is on the list.

III. Potential Privacy Act issues

NARA has identified at least two areas in which implementation of the
Nazi War Crimes Disclosure Act could be impacted by the provisions of the Privacy Act:

(1) The Office of Special Investigations has asked that agencies, once
they have located responsive records, pass the records to OSI for its review and
determination whether the records fit within the Nazi War Crimes Disclosure Act's
exclusion from disclosure for records "related to or supporting any active or
inactive investigation, inquiry, or prosecution" by OSI. In anticipation that at
least some responsive records may be located in Privacy Act systems of records, agencies
should check their Privacy Act routine uses to see whether a disclosure of those records
to OSI would fit within an existing published routine use. Another way to deal with such a
disclosure would be for OSI to make a written request to the agencies that comports with
the requirements of the Privacy Act's subsection (b)(7) (allowing an agency to
disclose Privacy Act-protected records for a specified law enforcement purpose). Yet
another approach could be for agencies to publish a specialized routine use for purposes
of implementing the Nazi War Crimes Disclosure Act, as discussed immediately below.

(2) Agencies that wish to withhold information in responsive records
under one of the exemptions in the Nazi War Crimes Disclosure Act at Section 3(b)(2) will
need concurrence by the Interagency Working Group before an exemption is invoked and
information is withheld. In order to get the IWG's concurrence, agencies will need to
provide those records to the IWG for its review. It is likely that at least some of these
records will come from Privacy Act systems of records. It is unlikely, however, that
agencies have an already-published routine use that would allow such a disclosure from the
agencies to the IWG. Therefore, agencies should consider publishing a new routine use to
cover such a disclosure. Such a new routine use could also be written in such a way to
permit the disclosure discussed above in point (1).

Agencies are strongly advised to consult with their General
Counsel's Offices, and with the Office of Management and Budget and the Department of
Justice, on strategies to deal with the potential Privacy Act problems noted in the
foregoing two points.

Finally, agencies will be turning over their declassified records to
NARA to be made available to the public under the Nazi War Crimes Disclosure Act. NARA
believes that disclosure of such records to NARA by the agencies is permitted under
subsection (b)(6) of the Privacy Act.